tag:blogger.com,1999:blog-1338340950117212362023-11-15T08:52:33.435-05:00Sixth Circuit Immigration BlogAn immigration law blog focusing on immigration issues arising at or within the Sixth Circuit.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.comBlogger177125tag:blogger.com,1999:blog-133834095011721236.post-6392553603755105832017-01-06T15:15:00.000-05:002017-01-06T15:15:07.968-05:00Sixth Circuit on "lawfully" acquired LPR status for naturalization eligiblity<a href="http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0001p-06.pdf"><i>Turfah v. Lynch</i>, __ F.3d __ (6th Cir. 2017) (published)</a><br />
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In this case, Turfah immigrated as a derivative beneficiary of an approved visa petition filed for a parent. Unfortunately, he immigrated 24 days <i>before</i> the principal beneficiary. No one realized the mistake until he applied for naturalization.<br />
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USCIS denied his naturalization application and argued that he did not "lawfully" acquire LPR status because he immigrated before, not with or after, the principal beneficiary of the visa petition. He appealed to the district court and lost. The Sixth Circuit affirmed the denial.<br />
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The court agreed that even though he was admitted as an LPR, he did not "lawfully" acquire that status. Therefore, he was not eligible for naturalization even though it had been more than five years since his admission.<br />
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Hopefully the USCIS will accept the court's suggestion that it work out a solution to what the court called a very sympathetic case. The USCIS has several options available to it.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-84486629782382570742014-07-16T16:35:00.001-04:002014-07-16T16:35:19.247-04:00Sua sponte reopening/equitable tolling due to vacatur of conviction<a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0455n-06.pdf"><i>Lisboa v. Holder</i>, No. 12-4237 (6th Cir. Jun. 25, 2014) (unpublished)</a><br />
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Lisboa was removed based on convictions for assault and domestic violence. As part of the plea, he agreed to give up his green card and leave the U.S. Before he could comply, he was detained, ordered removed, and removed.<br />
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Following his removal, he successfully challenged his conviction and it was set aside due to a defect in the underlying proceeding. Lisboa then filed a motion to reopen, which the BIA first denied based on the departure bar. After this office successfully challenged the departure bar in the Pruidze case, the 6th Circuit remanded to the BIA. This time, the BIA denied based on a time bar.<br />
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The court declined to reach the issue of sua sponte reopening. Instead, it remanded for the BIA to consider an equitable tolling argument.<br />
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Interestingly, in this case an unnamed former ICE trial attorney and Lisboa's ex-wife teamed up to file an amicus brief at the BIA urging that his motion be denied.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-38768453421527110592014-05-07T11:51:00.001-04:002014-05-07T11:51:42.789-04:00Being forced to concede relief may violate due process<a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0347n-06.pdf"><i>Suarez-Diaz v. Holder</i>, No. 13-3605 (6th Cir. Apr. 30, 2014) (unpublished)</a><br />
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In this case, the court criticized the practice of pressuring respondents to give up claims for relief to receive a continuance or some other benefit. However, it is not a per se due process violation. The court found no due process violation on the facts of this case.<br />
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The court also found no abuse of discretion in denying a sixth request for a continuance. The respondent sought a continuance to pursue an administrative appeal of the denial of his Cuban Adjustment Act application. There is no indication in the court's decision as to the status of that appeal.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-46127871565240384422014-05-07T11:46:00.001-04:002014-05-07T11:46:30.589-04:00Sixth Circuit defers to Matter of Y-L-<a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0346n-06.pdf"><i>Luambano v. Holder</i>, No. 13-3881 (6th Cir. Apr. 30, 2014) (unpublished)</a><br />
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In this decision, the court deferred to the AG's decision in <i>Matter of Y-L-</i>, 23 I&N Dec. 270 (AG 2002), which found that drug trafficking convictions are presumptively particularly serious so as to bar an applicant from withholding of removal.<br />
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It is unclear why the petitioner conceded that his conviction for delivery of marijuana is an aggravated felony drug trafficking offense, when he could have argued otherwise.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-10381022740972697072014-05-07T11:42:00.001-04:002014-05-07T11:42:39.447-04:006th Cir on review of CAT claims, denial of venue change<a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0314n-06.pdf"><i>Mendoza-Rodriguez v. Holder</i>, No. 13-4357 (6th Cir. Apr. 25, 2014) (unpublished).</a><br />
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In this case, the court affirmed the denial of CAT relief to a convicted drug dealer who feared retaliation by a Mexican drug cartel due to his perceived cooperation with law enforcement.<br />
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The court concluded that most of the issues were immune from review because of his criminal history. Under the limited scope of review, the court could not reweigh the evidence. The court affirmed the denial of his motion to change venue because it did not affect the proceedings or render them fundamentally unfair.<br />
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It is not clear if the petitioner pursued relief under the Convention Against Transnational Organized Crime.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-72961250276790726752014-02-13T13:45:00.002-05:002014-02-13T13:45:31.605-05:00Sham divorce case now published<a href="http://6thcir.blogspot.com/2013/12/sixth-circuit-recognizes-concept-of.html">http://6thcir.blogspot.com/2013/12/sixth-circuit-recognizes-concept-of.html</a> is now a published decision. <a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0032p-06.pdf">http://www.ca6.uscourts.gov/opinions.pdf/14a0032p-06.pdf</a> Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-45578777913730999002014-02-04T15:22:00.000-05:002014-02-04T15:22:43.055-05:00Sex Abuse of a Minor<a href="http://www.ca6.uscourts.gov/opinions.pdf/14a0006p-06.pdf"><i>USA v. Mateen</i>, No. 12-4481 (6th Cir. Jan. 7, 2014) (published)</a><i> </i><div>
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In this criminal sentencing, the court addressed an issue relevant to the sex abuse of a minor aggravated felony ground of removal. In this case, the government sought a sentencing enhancement based on the defendant's prior conviction Gross Sexual Imposition. The government alleged that this qualified as a prior conviction for "aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward." </div>
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The court first applied the the categorical approach and concluded that the state offense must include as an element the age of the victim. The "involving a minor or ward" language modified the sexual abuse, etc., language. In this case, it was clear from the plea colloquy and other documents that the victim was a minor but because the victim's age was not an element of the offense, it did not trigger the sentencing enhancement.</div>
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The court next applied the modified categorical approach. The factual basis for the conviction is relevant only to the extent that it assists the court in identifying which alternative elements of the statute were violated. Although the judgement did not identify the specific subsection that was violated, it did narrow down the possibilities and none of those possibilities include age as an element.The court would not rely on or consider factual material in the charging documents or the plea colloquy because it was not essential to the guilty plea or an element of the offense.</div>
Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-66001263812611751632014-02-04T15:00:00.001-05:002014-02-04T15:00:58.348-05:006th Circuit on credibility determination, stays of removal<i>Slyusar v. Holder</i>, No. 13-3071 (6th Cir. Jan. 30, 2014) (published).<br />
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In this published decision, the Sixth Circuit addressed several issues relating to an asylum claim.<br />
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First, the court upheld an adverse credibility determination in an asylum and withholding of removal claim from Ukraine. The discrepancies included employment history, date of entry, possession of a Ukrainian passport at entry, prior marriages, and attempts to file an asylum claim. Although these do not necessarily go to the heart of the claim, they were sufficient to support the adverse credibility finding under the REAL ID Act.<br />
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Second, the court denied a motion for stay of removal. While the motion became moot upon the denial of the petition for review, the court addressed the 4 factors for a stay. The court found there would be irreparable harm (second prong). Addressing the third prong (harm to government) and fourth prong (public interest), the court noted these merge in immigration cases and stated that the public has an interest in not wrongfully removing a noncitizen, especially to a country where she will be harmed.<br />
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However, when the petition for review involves an adverse credibility determination, the court seemed to suggest that the noncitizen can never meet the first prong, a substantial likelihood of success, because the court cannot review the merits of the asylum claim if the BIA's decision rested solely on the credibility determination. "In effect, the REAL ID Act forecloses stays of removal to asylum-seekers who have received adverse credibility determinations by constructively preventing them from proving eligibility for such relief." This is quite troubling for future litigants seeking to avoid removal to the country of persecution.<br />
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In closing, the court cautioned agency adjudicators from making adverse credibility determinations that rest on issues unrelated to the heart of the claim because of hurdles those applicants face on review and the possibility that this would punish applicants for their trauma.<br />
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<br />Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-53774960347621167462014-02-04T14:47:00.000-05:002014-02-04T14:47:12.676-05:00BIA on reopening for same sex marriage<i>In re Manuel Lopez-Rivera</i>, A089-235-276, 2014 WL 347695 (BIA Jan. 3, 2014) (unpublished)<br />
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The noncitizen filed an untimely motion to reopen following the Supreme Court's decision on the Defense of Marriage Act in <i>U.S. v. Windsor</i>. The noncitizen sought reopening based on his same-sex marriage and pending I-130 petition. The BIA declined to reopen sua sponte because there was insufficient evidence that the marriage was bona fide.<br />
<br />Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-69284043552967317662014-02-04T14:41:00.002-05:002014-02-04T14:41:23.479-05:00BIA on reopening for provisional waiver<i>In re Daniel Romero-Tello</i>, A200-297-980, 2013 WL 6921581 (Dec. 31, 2013 BIA) (unpublished).<br />
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The noncitizen filed a timely motion to reopen. He sought administrative closure so he could file an I-601A unlawful presence provisional waiver. The BIA denied the motion because he is subject to a final order of removal and is therefore ineligible for the waiver (although he would be eligible if the motion was granted). The BIA noted that the regulations do not provide for reopening on this basis.<br />
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The noncitizen also sought reopening and reconsideration because his U.S. citizen wife's visa petition was approved. The BIA denied the motion because, when it first decided the appeal, there was no proof the I-130 was approved. The noncitizen failed to file this proof before the appeal was denied despite having over 3 months to do so.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-4451267183682078482013-12-19T15:52:00.001-05:002013-12-19T15:52:47.241-05:00Sixth Circuit recognizes concept of sham divorce<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a1040n-06.pdf"><em>Bazzi v. Holder</em>, No. 12-3759 (6th Cir. Dec. 19, 2013) (unpublished)</a><br />
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In this case, the noncitizen allegedly lied about whether he had truly divorced his wife in Lebanon before applying for an immigrant visa in the 2B category in 1989. He was found to have been involved in a sham divorce and was denied a visa. A few years later, his ex-wife and their six children immigrated to the U.S. in a petition filed for her as an unmarried child. They are now citizens.<br />
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Bazzi entered without inspected a few years later and applied for adjustment of status, possibly as the parent of an adult USC child. He was denied on the grounds that he was inadmissible as the result of fraud in sham divorce/1989 immigrant visa proceedings.<br />
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The court upheld this finding and in the process also recognized the concept of sham divorces in immigration law. Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-36711935949983691442013-12-19T15:43:00.001-05:002013-12-19T15:43:10.874-05:00Detainers against U.S. citizens does not violate clearly established liberty right<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0340p-06.pdf"><em>Ortega v. ICE</em>, No. 12-6608 (6th Cir. Dec. 10, 2013) (published)</a><br />
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In this case, a USC was sentenced to home confinement as part of a driving under the influence conviction. ICE issued a detainer against him, purportedly because his name and birth date resembled that of a noncitizen who had been removed. Apparently there was not a fingerprint match but that did not matter. As a result, he was imprisoned for four days before being released.<br />
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His lawsuit was dismissed on qualified immunity grounds because there was no clearly established right to be free from unnecessary imprisonment as a result of an improperly issued detainer. This will only encourage further such erroneous detainers.<br />
Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-83145386315156625742013-11-26T08:56:00.000-05:002013-11-26T08:56:22.298-05:00District Court rejects Rojas<em>Rosciszewski v. Adducci</em>, __ F. Supp. 2d __, 2013 WL 6098553 (E.D. Mich. Nov. 14, 2013).<br />
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The district court found that the meaning of "when released" in 236(c) is plain therefore did not the defer to the BIA's interpretation of that provision in <em>Matter of Rojas</em>. Because the LPR was not taken into custody immediately upon, or within a reasonable period of time after, his release from criminal custody, mandatory detention did not apply.<br />
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The court found the government's position was not substantially unjustified so it denied EAJA fees.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-42387749826974690942013-11-12T17:30:00.001-05:002013-11-12T17:30:19.686-05:00Reinstatement of Removal<i>Ruiz v. Holder</i>, No. 12-3900 (6th Cir. 2013) (unpublished).<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0893n-06.pdf">http://www.ca6.uscourts.gov/opinions.pdf/13a0893n-06.pdf</a><br />
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The issue in this reinstatement case was whether the noncitizen timely complied with the voluntary departure order. If he did, then there is no order to reinstate. If he did not, the order can be reinstated because he reentered without inspection.<br />
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The court found that it had jurisdiction over the reinstatement challenge even though Ruiz did not sign the Notice of Intent form or indicate an intention to challenge the reinstatement request administratively. This is not a required remedy that has to be exhausted because it is not an administrative remedy.<br />
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The court found that the streamlined reinstatement process does not violate due process. The court acknowledged the difficult road to challenge a reinstated order because judicial review is limited to the administrative record and if the noncitizen does not submit documents to ICE, the record will be thin on review. <br />
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The court found no prejudice because it concluded that it did not matter if he complied with the voluntary departure order because he later entered without inspection. This raises the question of what order is being reinstated if there was only a voluntary departure order, not a removal order. This also raises the question of whether the deprivation of the right to apply for cancellation of removal results in prejudice even if the relief is discretionary (see St. Cyr).Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-35687893505958572522013-11-12T17:23:00.000-05:002013-11-12T17:23:07.621-05:00Notice to former counsel does not equal notice to party<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0328p-06.pdf"><i>Lampe v. Kash</i>, No. 12-4487 (6th Cir. 2013) (published)</a><br />
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In this bankruptcy case, the matter for which the attorney represented the client ended 8 years ago. Notice of bankruptcy proceedings sent to the former attorney is not notice to the client because it is not reasonably likely that notice will reach the client, not the best way to reach the client, and the attorney is no longer the agent of the client or obligated to pass notice on to her.<br />
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This is not an immigration case but the comments about sufficiency of notice may help in that context.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-48098480758525086542013-09-24T10:22:00.001-04:002013-09-24T10:22:26.700-04:00BIA on reopening for DACA or provisional ULP waiverIn two separate unpublished decisions, the BIA denied motions to reopen to allow noncitizens to seek administrative closure for DACA or for a provisional unlawful presence waiver.<br />
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<i>In re Heron-Morales</i>, A097-550-281, 2013 WL 5208969 (BIA Aug. 12, 2013) (Memphis) - noncitizen filed motion to reopen sua sponte for administrative closure so she could then apply for an I-601A provisional unlawful presence waiver. The BIA denied the motion, finding that she is ineligible for a provisional waiver because she is subject to a final order (circular reasoning at its best). The BIA also found no regulatory basis for reopening for this purpose.<br />
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<i>In re Guzman-Vargas</i>, A205-005-710, 2013 WL 5208911 (BIA Aug. 5, 2013) (Detroit) - noncitizen filed motion to reopen for administrative closure based on pending DACA application. He was ineligible for DACA at the time of the removal order because he had not yet completed the educational requirements. He apparently meets them now but his DACA application has not been approved.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com1tag:blogger.com,1999:blog-133834095011721236.post-25795445016030338002013-08-02T15:43:00.000-04:002013-08-02T15:43:27.377-04:00BIA on Aggravated Assault, MCL 750.81a<em>Matter of Sangchul Lee</em>, 2013 WL 3899749, A200-298-115 (BIA July 5, 2013) (unpublished).<br />
<br />The BIA held that aggravated assault, MCL 750.81a is not categorically a CIMT. It specifically does not require the use of a weapon and it requires an intent less than an intent to commit murder or great bodily harm less than murder.<br />
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The BIA remanded for a modified categorical approach.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-21758464704084917732013-08-02T15:40:00.003-04:002013-08-02T15:40:29.611-04:00CA6 on Particular Social Group and Social Visibility<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0199p-06.pdf"><em>Umana-Ramos v. Holder</em>, No. 12-4274 (CA6 July 30, 2013) (published)</a><br />
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In this resistance to gang recruitment case, the Court clearly adopted the BIA's particular social group test, which requires a showing of particularity and social visibility. The Court did so with a caveat - social visibility is not to be taken literally (there is no on-sight visibility requirement). Rather, it means that individuals with a shared characteristic must be perceived as a group in the society at issue. <br />
Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-49261975930022145412013-07-26T11:44:00.000-04:002013-07-26T11:44:01.428-04:00CA6 on "murder" under the INA, Matter of M-W-<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0677n-06.pdf"><em>Wajda v. Holder</em>, No. 12-3978 (CA6 July 23, 2013) (unpublished).</a><br />
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The court affirmed the BIA's decision in <a href="http://www.justice.gov/eoir/vll/intdec/vol25/3746.pdf"><em>Matter of M-W-</em>, 25 I&N Dec. 748 (BIA 2012).</a> It answers the question of who M-W- is.<br />
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He failed to file a petition for review from the BIA's decision, instead choosing to file a motion to reconsider and then petitioning for review from that. So the court did not review the published decision, only that decision on the motion to reconsider.<br />
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The argument that the court considered was whether the BIA's decision finding second degree murder to be "murder" under the INA was foreclosed by another circuit court decision finding that vehicular homicide was not a "crime of violence." These are separate categories of offenses so the court found that there was no inconsistency. <br />
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There were better arguments but they were not properly pursued.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-35044028168047541822013-07-26T11:36:00.004-04:002013-09-11T09:15:40.316-04:00CA6 on jurisdictional/claim processing rules, deference<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0194p-06.pdf"><em>Shweika v. USCIS</em>, No. 12-1645 (CA6 July 25, 2013) (published)</a><br />
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This case involved an appeal from a district court decision dismissing a 1421(c) naturalization appeal. The district court found that it lacked jurisdiction because the applicant failed to exhaust his administrative remedies by walking out of an administrative naturalization appeal interview.<br />
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This decision is of note for several reasons, including:<br />
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1. Its discussion of jurisdictional limitations versus claim processing rules and how to determine which is which. This can help in other cases, such as those involving a failure to file a timely appeal or motion.<br />
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2. Its determination that the regulations are not owed deference because the federal court, not the agency, gets to determine the scope of the court's jurisdiction.<br />
<br />Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-91612013940467293812013-04-25T14:22:00.002-04:002013-04-25T14:26:03.462-04:00False claim to USC dooms wife of attorney<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0398n-06.pdf"><i>Martial-Emanuel v. Holder</i>, No. 12-3903 (6th Cir. Apr. 22, 2013)</a> (unpublished).<br />
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In this case, the court affirmed the denial of non-LPR cancellation of removal because of an insufficient showing of hardship. The foreign national and USC spouse are from Canada.<br />
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The decision is notable in that the foreign national was ineligible for adjustment of status because she claimed to be a U.S. citizen on an I-9 and registered to vote so she could renew her driver's license.<br />
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In another decision, <a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0395n-06.pdf"><i>Yemula v. Holder</i>, No. 12-3858 (6th Cir. Apr. 22, 2013) (unpublished)</a>, the foreign national was found by the USCIS to ineligible for adjustment because he claimed to be a citizen on two I-9s. The IJ did not sustain the 212(a)(9)(C) charge because the I-9 was ambiguous. Nevertheless, the IJ found him ineligible for adjustment of status on this basis because he had the burden of proving his eligibility for relief. The noncitizen was doomed in part by his own admissions to falsely claiming to be a U.S. citizen.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-54117351854757016302013-03-04T15:55:00.000-05:002013-03-04T15:55:03.753-05:00Shackling of female detainees in labor<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0059p-06.pdf"><i>Villegas v. Metro. Gov't of Nashville</i>, No. 11-6031 (6th Cir. Mar. 4, 2013) (published)</a><br />
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This was not directly an immigration case as it involved an action for damages against state and local agencies that shackled the plaintiff while she was giving birth and during the post-partum recovery period.<br />
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She was detained following an arrest for driving without a license because there was an ICE hold against her as the result of her re-entry following a removal. Because of the ICE detainer, she was classified at a security level that resulted in her being shackled.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-11148512855149510392013-03-04T15:52:00.001-05:002013-03-04T15:52:10.218-05:00Late-filed administrative appeal is not a jurisdictional bar<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0058p-06.pdf"><i>Abraitas v. U.S.</i>, No. 12-3747 (6th Cir. Mar. 4, 2013) (published)</a><br />
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This is a tax case but it discusses an issue that comes up in immigration cases - does the failure to timely seek administrative review deprive the court of jurisdiction over a petition for review?<br />
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The court found that the rules governing administrative review are claims processing rules that are not jurisdictional. However, the failure to exhaust administrative remedies through the filing of a timely administrative appeal does deprive the court of jurisdiction.Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-86770994095209572952013-03-04T15:46:00.001-05:002013-03-04T15:46:46.819-05:00Reinstatement of removal<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0180n-06.pdf"><i>Juarez-Chavez v. Holder</i>, No. 11-4224 (6th Cir. Feb. 19, 2013) (unpublished)</a><br />
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In this case, ICE reinstated a prior removal order. The alien filed a timely petition for review. The basis for the challenge was that the prior order, which was a stipulated order, was not done voluntarily, etc., and that the procedure whereby IJ's sign off on stipulated orders without further review violates due process.<br />
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The court rejected both arguments. The court declined to review the underlying order because such challenge was untimely. This could close off the door to any challenges to defective orders that are being reinstated, but the court did allow for an as-applied challenge in the appropriate case, such as where a timely challenge to the underlying order was not possible due to ineffective assistance of counsel or government misconduct.<br />
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<br />Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0tag:blogger.com,1999:blog-133834095011721236.post-72413054251436636172013-03-04T15:36:00.001-05:002013-03-04T15:36:57.034-05:00False statement to SBA is a CIMT<a href="http://www.ca6.uscourts.gov/opinions.pdf/13a0217n-06.pdf"><i>Novatchinski v. Holder</i>, No. 10-3873 (6th Cir. Mar. 4, 2013) (unpublished)</a><br />
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The court found that making a false statement to the SBA, in violation of 15 USC 645(a) is a CIMT because it involves deceiving government officials. Russell Abrutynhttp://www.blogger.com/profile/10033604390535314253noreply@blogger.com0